POLICE—SEARCH WARRANT— ISSUE OF WARRANT

Queen’s Bench Division, Divisional Court

Latham LJ and Underhill J

23 May 2008

All the material necessary to justify the grant of a search warrant has to be contained in the information provided in the relevant pro-forma.

Alun Jones QC and Rupert Bowers (instructed by Jeffrey Green Russell) for the claimants.

Tim Own QC and Alex Bailin (instructed by the City of London Corporation) for the commissioner.

The first defendant commissioner was investigating suspected conspiracy to defraud, false accounting and money laundering offences in the transfer activity of professional football players at the club managed by the first claimant and other clubs.

Orders were made pursuant to s 345 of the Proceeds of Crime Act 2002 requiring the first claimant’s club and others to supply documents in respect of a number of named transfers. Therafter, an application was made for a warrant under s 9 of the Police and Criminal Evidence Act 1984 (PACE) to allow searches of the business premises of the clubs for excluded material or special procedure material. Upon the without notice application of D, a further warrant was issued under PACE, s 8 in respect of a number of premises set out in a schedule thereto, including the home of the first claimant, which he shared with his wife, the second claimant. The application was supported by information supplied on a pro forma document.

The items identified as the material likely to be relevant evidence were precisely the same as those which had been identified in the application for the warrant under s 9, with the additional words that “which does not include material or information that is or consists of items subject to legal privilege or excluded material or information”. None of the four alternatives representing the conditions of PACE, s 8(3) that were applicable had been deleted. The warrant was executed when the first claimant was absent. The copy of the warrant provided to the second claimant who was present failed to specify the address of the claimants’ home, and she was not shown the schedule to the original. The claimants applied for judicial review, contending that the warrant had been defective and the search therefore unlawful.

LORD JUSTICE LATHAM:
The claimants contended: (i) that the description of the material sought was so far ranging as to justify the seizure of any document, that the description of the material indicated that it was capable of being excluded material or special material, and that the fact that a s 9 application had been made in respect of the same material made it clear that the police had to have expected such material to be included; (ii) that none of the statutory pre-conditions in PACE, s 8(3) were satisfied; (iii) that there was no power to grant a warrant that was both a “specific premises warrant” and an “all premises warrant”; and (iv) that there had been a failure to comply with the requirement in s 16(5) to produce the warrant, and supply a copy of it, to a person in occupation because it had not referred to the claimants’ address.

His lordship held that failures in the warrant were wholly unacceptable. The Divisional Court had complained in the past about slipshod completion of application forms such as the instant case, the last occasion being R (on the application of C) v Chief Constable of ‘A’ Police [2006] All ER (D) 124 (Sep). The obtaining of a search warrant was never to be treated as a formality. It authorised the invasion of a person’s home. All the material necessary to justify the grant of a warrant should be contained in the information provided on the form. If the magistrate required any further information, a note should be made of the additional information so that there was a proper record of the full basis upon which the warrant has been granted.

Witness statement
In the instant case, the only evidence, apart from the information itself, was contained in the witness statement of a police officer. He accepted that the description of the material sought was essentially the same as that sought in the earlier warrants, except for the words excluding from the search documents which attracted legal privilege or excluded material. His explanation for the fact the same categories of documents and material were identified, was that the July applications related to business premises in which excluded material and special procedure material might well be found so that a warrant under s 9 and Sch 1 was appropriate, whereas the premises identified in the other application related to private addresses where such material was unlikely to be found. Nowhere did he say that he identified to the magistrate which of the conditions in s 8(3) was the one upon which he was relying to justify the warrant.

The application for the warrant did not identify which of the conditions in s 8(3) was being relied on; and there was nothing in the police officer’s statement which clearly identified the fact that the magistrate was clearly told anything which could remedy that defect. As the conditions set out in s 8(3) had not been met, the warrant was unlawfully issued.

As a result, it was not necessary to consider the other grounds relating to the issue of the warrant. His lordship noted, however, among other things, that there was substance in the complaint, that the copy of the warrant provided to the second claimant failed to specify the address of her home. The second claimant was not shown the schedule to the warrant, and accordingly was not shown the fact that her address was on the warrant. The police explained by saying that they did not wish her to know what other addresses were being searched. That was no answer. Either separate warrants should be obtained, or the other addresses could be redacted. Accordingly, the execution of the warrant was not valid, the requirements of PACE, s 16(5) had not been satisfied.

The application would therefore be allowed.

Mr Justice Underhill delivered a concurring judgment.